U.S. Supreme Court Cites Judgments 2d

The U.S. Supreme Court recently cited the Restatement of the Law Second, Judgments, in holding that, under the Immigration and Nationality Act (INA), “certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime.” That burden was not met when the defendant was convicted under a statute comprised of multiple crimes, some of which involved moral turpitude, and the record was ambiguous as to which crime formed the basis of his conviction. 

In Pereida v. Wilkinson, No. 19-438 (March 4, 2021), a nonpermanent resident alien who had unlawfully entered and remained in the country sought discretionary relief under the INA from an immigration judge’s order of removal. While the removal proceeding was pending, the defendant was convicted of using a fraudulent social-security card to obtain employment in violation of Nebraska’s attempted-criminal-impersonation statute, which was comprised of four subsections, each constituting separate crimes. Under the INA, a party applying for relief has the burden of proof to establish, among other things, that he satisfies the four eligibility requirements, including that he had not been convicted of a crime “involving moral turpitude,” which the parties in this case interpreted as a crime involving fraud. The immigration judge determined that the defendant was not eligible for discretionary relief, because three of the subsections of the Nebraska statute involved fraud and the fourth subsection, regarding carrying on a business without a required license, was unlikely to be the crime he was convicted of violating.

The Board of Immigration Appeals and the Court of Appeals for the Eighth Circuit denied the defendant’s application for relief from removal, determining that, while the record was ambiguous as to which crime he was convicted of violating, he failed to meet his burden of proving that his conviction did not involve a crime of moral turpitude. The defendant appealed, arguing, among other things, that he could meet his burden of proof using the “categorical approach” because a person could hypothetically violate the Nebraska statute without committing fraud, and thus the statute does not constitute a crime involving moral turpitude. 

The U.S. Supreme Court affirmed the decision of the Eighth Circuit, holding, inter alia, that defendant failed to meet his burden of proving that his conviction was not a crime of moral turpitude. Associate Justice Neil M. Gorsuch, writing for the Court, clarified that the categorical approach required a factual inquiry into what crime the defendant was convicted of and a hypothetical inquiry as to whether someone could commit his specific crime without fraud. The Court reasoned that, under the INA, the absence of a disqualifying conviction was a question of fact requiring evidentiary support, and “like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so.” The Court noted that, similarly, in civil cases, “a party must prove the fact of a prior judgment on a particular claim or the fact of a ruling on a particular issue,” which “can turn on the persuasiveness of the proof presented and on whom the burden of proof rests.” As an example, the court pointed out that Restatement of the Law Second, Judgments § 27:

contemplates that parties seeking to assert issue preclusion “ha[ve] the burden of proving” that [ ] “an issue of fact or law” has been “actually litigated and determined by a valid and final judgment.” §27, and Comment f (1982). And “[i]f it cannot be determined from the pleadings and other materials of record in the prior action what issues, if any, were litigated and determined by the verdict and judgment, extrinsic evidence is admissible to aid in such determination. Extrinsic evidence may also be admitted to show that the record in the prior action does not accurately indicate what issues, if any, were litigated and determined.” Id., Comment f. 

The Court concluded that the defendant failed to carry his burden under the INA of proving that the crime forming the basis of his conviction was not a crime involving moral turpitude, pointing out that the defendant had refused to produce any evidence about his crime to the immigration judge.

Read the full opinion here.